MR D ROOKE v ANGLIAN WATER SERVICES LTD [2002] UKEAT 475_01_1706

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 475_01_1706Case No Appeal No. EAT/475/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D ROOKEAPPELLANTANGLIAN WATER SERVICES LTDRESPONDENT
Before
Mr Justice Wall Mrs A Gallico Mr S M SpringerDate 17 June 2002
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondent MR R LEMON (of Counsel) Instructed by: Anglian Water Services Ltd Legal Department Anglian House Ambury Road Huntingdon Cambridgeshire PE29 3NZ MR JUSTICE WALL In this case, Mr David Rooke appeals against the Decision of the Employment Tribunal held at Bury St Edmunds on 29 January 2001 and promulgated on 26 February 2001 whereby the Tribunal decided unanimously that Mr Rooke was not unfairly dismissed by his former employer, Anglian Water Services Ltd (Anglian Water). The Facts[2]Mr Rooke is an engineer who started employment with Anglian Water on 21 January 1991. His contract of employment stated that he was based at Colchester in Essex.[3]In 1994, Mr Rooke was promoted and on 26 October 1994, Mr A L Davis, the Engineering Manager of Anglian Water wrote to Mr Rooke with details of his new appointment. His letter contains this paragraph:
"For information a copy of your job role outline is attached to this document. As a term of your employment you may be required to undertake other such duties as may be requested of you commensurate with your level in the organisation."
[4]Mr. Rooke remained located at Colchester, but his contract contained a mobility clause in these terms:
"The Company decides on, and reviews regularly, the structure of the organisation. These reviews and any resultant changes will be made in accordance with arrangements in force at that time. Consequently it may be necessary for you to relocate from time to time, either on a temporary basis or permanent basis which may involve changing your place of residence to an area more compatible with your new work place. There are reorganisation and relocation agreements which operate at such times, copies of which will be in you HR Department."
[5]On 14 November 1994, Mr Rooke sent an E mail to Anglian Water stating that he was unable to accept his new contract. His protest, however, had nothing to do with the relocation clause: his complaint was that his new contract took him outside the band for paid overtime, and thus effectively represented a drop in income.[6]Despite this protest, Mr Rooke continued to work for Anglian Water. In 1998, as the Tribunal found, Anglian Water undertook a strategic review of its operations. It decided to close six of its offices and concentrate its work at Peterborough. Mr Rooke lived at Colchester and worked about five miles away from the Colchester depot. Mr Rooke was instructed to transfer to Peterborough but declined to do so. He was, accordingly, placed within an internal process where such refusals were considered. He made representations to the Human Resources Department, but the reasons for his refusal to move were rejected, and on 15 March 1998, he was offered a new contract at the Peterborough depot.[7]Mr Rooke's refusal to relocate to Peterborough resulted in further investigations being made by East Anglian Water and in particular Mr Rooke was, on 16 April 1998, asked whether he would undertake EAWR (Electricity at Work Regulations) work. On 29 May 1999, Anglian Water sent Mr. Rooke terms and conditions of employment as an Electrical Engineer based at Colchester which were the same as before except that they contained the following clause: - "You will be a member of the Electricity at Work Regulation Team and the special nature of this work requires you to be based at Colchester. Whilst it is anticipated that you will be based there for the foreseeable future, when the scope of the EAWR work reduces, your work base will become Peterborough"[8]After further exchanges, he was offered work on the EAWR programme on 13 August 1999, and an indication was given to him that the work was estimated to last until 2008. This would be well beyond his retirement date. However, he was required to sign a contract, and the contract he was required to sign included the same mobility clause as had been in the 1994 contract.[9]Mr Rooke did not agree to the new proposal, and refused to sign the new contact. He continued, however, to be paid and to be subject to the condition contained in paragraph 2.10 of his original contact that he:
"perform such other reasonable duties as may be required from time to time"
[10]The evidence produced by Anglian Water was that between August and February 2000 Mr Rooke was casual in his attendance at work and in his filing of reports. On 7 February 2000, Mr. Rooke's line manager discovered that he was not at work when he should have been. The line manager convened a meeting on 10 February 2002. Anglian Water prepared a minute of this meeting which the Tribunal found to be accurate.[11]The Tribunal found that Mr Rooke had been invited in February to attend an EAWR course. Mr Rooke had refused to do so. His view was that if he attended the course he was affirming the contract which he was unwilling to sign.[12]As a consequence of Mr Rooke's conduct, Anglian Water invoked its disciplinary procedures by means of a letter dated 6 April 2000 to Mr Rooke from Philip Laws, its Civil Engineering Manager. This letter is important, and we set out in its entirety. "6 th April 2000 Dear David Disciplinary Hearing You attended a disciplinary hearing today at Anglian House, Huntingdon, and the following was conveyed to you. The panel listened carefully to both sides. The evidence presented was extensive and we have attempted to consider key points relevant to the alleged offences in our deliberations. You informed the panel that as a multi skilled engineer, your duties have in the past included electrical work. The panel believes that the range of duties you were asked to perform were within your skills set. Accordingly we believe your manager acted in a reasonable and fair manner by asking you to comply with his requests. In addition, when questioned, you admitted you had:-• refused to attend a training course• refused to carry out project work as instructed• refused to attend work as required• refused to complete your time bookings• refused to provide project reports as requested• refused to maintain your schedule + advising of your whereabouts Therefore, by your own admission, the alleged offences are proved and as such constitutes gross misconduct. The penalty for gross misconduct may include dismissal from your employment with Anglian Water. During the hearing you failed to demonstrate that you intend to abide by company policy and procedures in the future. Therefore, in view of your conduct, the only course open to the panel is to terminate your employment without notice, effective from today - 6 th April 2000. You have the right to appeal against the decision. You should submit your appeal in writing within 14 calendar days of receipt of this letter, to Peter Cook, Director Technology Group. Yours Sincerely Philip Laws Civil Engineering Manager"[13]The Tribunal found that Mr Rooke had adopted the stance that he was guilty of all that had been alleged against him, but that none of the allegations, either individually or collectively, amounted to justification for the disciplinary process. In other words, he had no case to answer. He was, accordingly, dismissed. He then appealed. There was an appeal hearing which, the Tribunal found, went into the matter very thoroughly. Mr Rooke's appeal was dismissed.[14]Having set out the facts, the Employment Tribunal then examined the law. It directed itself correctly under section 98 of the Employment Rights Act 1996 (ERA). It found that there was a dismissal, and that the stated reason for the dismissal was a reason relating to Mr Rooke's conduct, namely the matters outlined in the letter of 6 April. The Tribunal then applied the test set out in section 98(4) of the ERA, and decided that Anglian Water had treated the reason for dismissal as a sufficient reason, and accordingly the dismissal was not unfair substantively. The Tribunal considered the procedure adopted, and was satisfied that it was both contractually and objectively fair. Accordingly, the Tribunal came to the view that the dismissal could not be faulted on procedural grounds, with the result that Mr Rooke's application for unfair dismissal had to be refused.[15]In our judgment, the Tribunal introduced an element of confusion into its Reasons in paragraph 12 of those Reasons. This is what the Tribunal found in paragraph 12:- "Our reasons for coming to this conclusion are that at the heart of all this case is a contractual issue. Was the applicant bound by the Mobility Clause in the unsigned contract of 1994. We are satisfied that he was. He received, he read it, and he never signed it. We are unclear as to whether he never signed it because of the objections he raised to it in the letter to which we were already referred, document 17 of his bundle, or generally because he objected to the Mobility Clause. The Mobility Clause is not mentioned in that letter. Admittedly his original contract did not have a Mobility Clause but he had been promoted and it is not at all unreasonable that on promotion he got a new contract of employment and because of his wider responsibilities and usefulness to the respondent, a Mobility Clause was required of him."[16]In our judgment, it is not accurate to say that a contractual issue was at the heart of the case. The heart of the case is Mr Rooke's behaviour, and Anglian Water's reasons for dismissing him. It is, however, accurate to say that a contractual issue was at the heart of Mr Rooke's disagreement with Anglian Water. In our judgment, however, the contractual dispute had nothing substantively to do with his dismissal. His dismissal was brought about by his conduct in behaving in the way set out in the letter of 6 April 2000.[17]In our judgment, there was no justification whatsoever for Mr Rooke's behaviour. He was still employed and paid by Anglian Water, and was under an obligation to perform such reasonable duties as might be required of him from time to time. He was, of course, at issue with them over the proposed relocation clause in his new contract of employment, but it is very clear that at the time of the matters complained about in the letter of 6 April 2000 - that is between February 2000 and 6 April 2000, Mr Rooke was under no threat of any kind - whether disciplinary or otherwise - consequent upon his refusal to sign the new contract. This is made patently clear by a letter dated 20 December 1999 from Peter Cook, Director of the Technology Group of Anglian Water to Mr Rooke, which reads as follows:- "Dear David Engineering Review There has been copious correspondence over many months which has focused on mobility. I am aware that in an effort to be seen to be fair to all, Anglian Water's assistance to comply with this clause has caused much distress. I am also aware that unless this issue is conclusively resolved it will remain an obstacle to good working relationships. Failure to address this issue at SSR and before has led to the confusion we have today and this must be brought to an end. In order to move forward, we must therefore validate claims on both sides by examining individual conditions of employment from initial appointment. This will include all the revisions to those conditions. It could possibly be argued that this should also have been done at a much earlier stage. On completion, you will be sent the results of this review, including the basis of this statement, for your comment. It has been previously stated that your conditions of employment have not been changed as a result of the engineering review. As such this statement will represent your current and pre-engineering review position with respect to mobility hence further confirmation of your acceptance will not be required. It is anticipated that this exercise may take several days. All and any ultimatums previously given regarding your employment at Anglian Water are therefore withdrawn. I trust this course of action will remove the uncertainty that has existed to date and enable us all to move on."[18]Against the background of this letter, and on the basis that the work proposed by the EAWR programme was estimated to last until 2008, we have to regard Mr Rooke's dispute with Anglian Water on the mobility clause as a "red herring" as far as the reasons for his dismissal are concerned. There was nothing in the "relocation clause" dispute between Mr Rooke and Anglian Water which could, in any way, justify or explain Mr Rooke's conduct as set out in the letter of 6 April 2000, and the Tribunal was clearly entitled to find that Mr Rooke's dismissal was fair.[19]The Tribunal appears to have adopted this analysis in paragraphs 13 and 14 of its Reasons, which read as follows:- "13 The dismissal process was lengthy. The applicant's position at the Disciplinary Hearing was that he had no case to answer and we remind ourselves of the evidence he gave to the Tribunal in cross-examination when he said, in terms, that he would have done the EAWR work had it not been for the requirement to sign a contract containing the Mobility Clause. The only issue was the Mobility Clause, he had volunteered to go on the EAWR training course a few years earlier and it was plainly part of his field of responsibility and skill. His refusal to accept the new work was a rejection by him of his contract of employment, following a long period of time, from August 1999 to February 2000, when he seems to have adopted a very casual attitude towards his work and in our view, the charges are justified. It is no defence for him to say that it was against the background of the Mobility Clause in the new EAWR contract. 14. We cannot avoid coming to the slightly speculative conclusion that the negotiations leading to the closure of the six offices and centralisation at Peterborough which, we remind ourselves had the approval of the appropriate trade unions, though the applicant was not a member, contained the provision that there would be redundancies for those who either could not be mobile, or were not needed within the centralisation process. But we remind ourselves that this is not a case where the applicant was redundant, and rejected work which the respondent claimed to be suitable alternative work. This is a case where the applicant had as part of his responsibilities the EAWR work, and he was offered a contact which was expected to last to 2008. He expected to retire at 60 in November 2002 and adopted a principled objection which, unfortunately, was not founded on a legally enforceable principle."[20]In these circumstances, we can detect no error of law in the Tribunal's Decision, and the appeal must inevitably therefore be dismissed.